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The Cost of Litigation

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6 Responses

  1. Bruce Boyden says:

    “One of the primary problems with our legal system is its extravagent cost, and the problem is only getting worse. The problem is caused in large part by lawyers, who command extremely high hourly rates.”

    I agree entirely with the first sentence, but not the second sentence. How is the problem caused by lawyers? If anything, the problem is that there are too *few* qualified lawyers; if there were more, the price would come down.

  2. Eric Goldman says:

    I wonder how anti-SLAPP laws change the discussion? Perhaps now there are enough of them that some empirical comparisons between anti-SLAPP states and others could be made. In any case, anti-SLAPP offers a nice compromise–some loser-pays aspects without changing the attorneys fee rule across-the-board. Eric.

  3. Howard Wasserman says:

    I would be curious if there is a difference between trial-court success in state court (where the large majority of cases are brought) and federal court (where cases are brought should diversity exist). Are federal juries less susceptible to emotion and more attuned to the concept of malice than state juries? Do defendants prevail more in federal than in state court?

    If so, one of the culprits in the high cost borne by media defendants is the “Well-Pleaded Complaint Rule,” under which state-law libel cases remain in state court, even though the media has a strong First Amendment defense.

  4. conrad erb says:

    If we wish to reduce the costs of seeking justice in the courts, could I suggest that we examine the current system of legal training? I’m not a lawyer, but my impression speaking to lawyers is that for most, the process of becoming a lawyer has little to do with acquiring the practical skills of lawyering.

    I am told that the LSAT has little to do with practice. The law classes themselves are mostly focused on the academic aspects of the law, and often not so applicable to the day-in and day-out of being a lawyer.

    I am told that the bar exam is similar to practicing a whole week of law with multiple clients across multiple issues, without ever cracking open a book to make sure that you understanding of the law is correct (something that most attorneys wouldn’t do until they are much more experienced – if at all).

    Finally, I have heard some lawyers complain that

    the real education of the young lawyer comes during their first few years on the job – and guess what? It is their clients that foot the bill and subsidize the hands-on training that the lawyers receive.

    I’m all for affordable justice, however, it seems to me that lawyers’ high hourly fees are the symptom of a greater problem, which is a training process that does not encourage people who wish to master the practical skills of being a lawyer.

  5. ray fuller says:

    Anti-SLAPP statutes, especially in the California courts, are horribly abused by large corporate defendants to protect themselves from tortious misconduct. In the name of protecting the corporation’s right to petition for redress of grievances, the intent of the statute to protect the little guy is turned upside down to totally deprive him of any right to petition for redress of grievances via lawsuit. Before discovery can even be commenced, without benefit of any trial, the lawsuit is thrown out for infringing upon the constitutional rights of corporate wrongdoers. Insult is added to injury by awarding costs and attorney fees to miscreant corporations, whose litigation expenses are funded by their insurance companies (and who employ expensive big law firm counsel). Everyone should be entitled to his day in court. Anti-SLAPP statutes are abused in California courts shamefully, and strategically.

  6. Ned Ulbricht says:

    So what exactly was the problem with settling affairs of honor by personal duels?

    Or is it just that ink-stained newspaper-scribbling wretches are not gentlemen?

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